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Reasonable Particularity in Requesting ESI

In an age discrimination suit, a Plaintiff’s motion to compel discovery was denied by a Magistrate Judge on the grounds the requests were overboard. The Plaintiff challenged Magistrate’s order. The District Court found the requests were also overboard. Doubt v. NCR Corp., 2011 U.S. Dist. LEXIS 95518, 11-12 (N.D. Cal. Aug. 22, 2011).

Below are three examples of the discovery requests at issue in the motion:

REQUEST FOR PRODUCTION NO. 128:Each and every document, whether piece of electronically stored information, email, including attachments thereto, memorandum, text message, or piece of correspondence emanating from someone, rather than being part of a manual, that inquired in 2008 about the earnings of, and/or overtime worked by, a Customer Engineer whom NCR was considering to be either put on PIP, scheduled for termination, or terminated.

REQUEST FOR PRODUCTION NO. 133:Each and every document, whether piece of electronically stored information, email, including attachments thereto, memorandum, text message, or piece of correspondence emanating from someone, rather than being part of a manual, that prior to September 15, 2008 reflects NCR employees or consultants discussing, reflecting upon, or speculating as to, any amounts that might have to be paid to Customer Engineer 2s and a group as a result of the Teeter v. NCR class action, ED CV 08-00297-SGL.

REQUEST FOR PRODUCTION NO. 141 []: Each and every document, whether piece of electronically stored information, email, including attachments thereto, memorandum, text message, or piece of correspondence emanating from someone, rather than being part of a manual, that was sent to or from, or circulated among NCR management that reflects NCR management awareness in 2008 of, and/or discussion of, the amount of overtime being worked by Customer Engineers in 2008.

Doubt, at *8-9, 10-11.

A discovery request must both be relevant to a party’s claims or defenses and “reasonably calculated to lead to admissible evidence.” Doubt, at *11, citing Federal Rule of Civil Procedure Rule 26(b).

Federal Rule of Civil Procedure Rule 34 states that a discovery “must describe with reasonable particularity each item or category of items.” Doubt, at *11, citing Federal Rule of Civil Procedure Rule 34.

The Court explained that the requests were not limited in scope as to sender, recipients or subject matter, even through the requests were limited to 2007 and 2008. Doubt, at *11.

The Court held the discovery requests were overbroad and failed to describe with “reasonable particularity” the ESI to be produced. The Court stated the request’s “expansive sweep” would include information that would be not relevant to the lawsuit and be unduly burdensome. Doubt, at *11.

The Court described the requests would require the Defendant to search all of their administrative records regarding customer engineers from all of the employees about general topics. Doubt, at *11-12.

The Plaintiff argued the requests were relevant to the pretext element of his age discrimination, however, the Court explained that such evidence would need to relate to managers, not every employee in a company. Doubt, at *12. Since the requests were not limited to correspondence between management and limited to specific subject matter, the discovery requests were overbroad. Id.

Bow Tie Thoughts

Drafting discovery requests is an art.

Drafting discovery requests in the age of email, text message and social media requires an attorney to have the hands of a surgeon to request specifically what is relevant to his client’s claims or defenses with “reasonable particularity.”

A surgeon’s skill is not simply needed to comply with Federal Rule of Civil Procedure Rules 26 and 34, but to avoid actually having to review a nightmare amount of data.

If a party actually produced email and attachments after searching an entire corporate exchange server of only 100 people, there would be potentially an extreme amount of data to review.

Just imagine how much email you get in one hour. Multiple it by 100. Now imagine that amount over two years to get an idea of the volume.

For both a requesting or producing party, technology such as “early case [data] assessment” can be extremely helpful in identifying relevant discovery. However, ECDA cannot limit ESI for identification without first determining what is being searched with “reasonable particularity.”

In identifying ESI with “reasonable particularity” at a minimum includes the type of ESI (email, Excel, text message), the author of the ESI (Email Sender or who drafted a file), Recipients of messages, date ranges and keywords designed to identify ESI relevant to a party’s claims or defenses.

There can be many other factors for attorneys and e-Discovery consultants to consider, but thinking in these terms would be a good starting point in drafting discovery requests by first considering how data would be searched for production.